Top Terms RSSMon, 15 Mar 2021 19:12:00 GMTthrough lack of due regard to the law or the facts.  

]]>Mon, 15 Mar 2021 19:12:00 GMTKandola v Google LLC (No 2) [2021] FCA 1412 (12 November 2021) - provides that an applicant for preliminary discovery must satisfy the Court that there may be a right for the prospective applicant to obtain relief against a prospective respondent;  the prospective applicant is unable to ascertain a description of the prospective respondent; and another person, the respondent to the application for preliminary discovery, knows or is likely to know that description, or has or was likely to have had, control of a document that would help ascertain that description.

]]>Wed, 26 Jan 2022 05:34:37 GMTBasetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 2) [2015] FCA 762; 236 FCR 432 - provides that the Court has jurisdiction to grant an interlocutory injunction to restrain a threatened contempt of court.  Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 - noted that while the freedom is not absolute, it is one which the Court does not lightly restrain by injunction.   

]]>Wed, 26 Jan 2022 05:32:25 GMTCommonwealth v Verwayen (1990) 170 CLR 394 - held that the question whether departure from the assumption would be unconscionable must be resolved by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted.

]]>Wed, 26 Jan 2022 05:42:27 GMTCummings v Claremont Petroleum NL (1996) 185 CLR 124 - provides that while a claim alleging breach of fiduciary duty is not a claim in contract, it is a claim “by reason of” a contract or breach of trust and it is a debt provable in bankruptcy. Badenach v Calvert [2016] HCA 18; 257 CLR 440 - provides that a solicitor owes a duty to their client in both contract (under the retainer) and tort.

]]>Wed, 26 Jan 2022 06:32:18 GMTLovell v Penkin (a bankrupt) [2008] FCA 637; 101 ALD 335 - where the tort claim arises because of the existence of—“by reason of”—the retainer.   Jack v Kipping [1882] UKLawRpKQB 14; (1882) 9 QBD 113 - held that framing a claim as a claim in tort does not conclude the question whether the demand arises by reason of a contract or promise.   Hawkins v Clayton (1988) 164 CLR 539 - held that the scope of the duty in tort will usually be set by the terms of the retainer (which indicates the nature of the relationship that gives rise to the tortious duty of care).

]]>Wed, 26 Jan 2022 06:43:27 GMTWestfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCATrans 367 - where Hodgson JA said that a development consent should be construed, like a contract, to preserve its validity and to avoid uncertainty. 

]]>Thu, 27 Jan 2022 01:30:47 GMTR v Doan [2000] NSWCCA 317 - where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. 

]]>Thu, 27 Jan 2022 01:48:25 GMTX7 v Australian Crime Commission[2013] HCA 29 - provides that criminal proceedings are also accusatorial in nature, which requires that the Crown prove its case and cannot require an accused to assist in doing so. 

]]>Thu, 27 Jan 2022 01:41:55 GMTKassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 - the Minister's power must include dealing with contingencies, including those which are highly unlikely or which may never eventuate for the object of “prevent[ing]” the spread of any disease and is, accordingly, a wide power Digest Larter v Hazzard (No 2) [2021] NSWSC 1451 (10 November 2021) - where it was provided that the 90-day time limit in 7(5) requires the Minister to review the need for an order within that period and make another order if the continuing risk to public health was thought to require it.

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